Indira Devi vs State Of Bihar & Ors

This writ petition under Article 226 of the Constitution of India has been filed by the petitioner for quashing the judgment dated 19.07.2017 passed in

Election Petition No. 2 of 2016 by the learned Munsif, Kahalgaon, Bhagalpur whereby and whereunder he has given directions that first of all counting

will be done of 438 rejected votes and on the basis of the counting of those votes if the election petitioner (respondent no.5) is found to have

secured/obtained highest votes, she shall be declared elected Mukhiya and, in the alternative, if on the basis of counting of rejected 438 votes, no

change in the election result is found then the ballot papers of booth nos.70, 71, 72, 74, 75, 81 and 82 shall be counted and, on the basis of the votes

secured by each candidate, result shall be declared in favour of the candidate, who has secured highest votes.

In 2016, the State Government notified for election of Gram Panchayat throughout the State of Bihar. The petitioner along with respondent nos. 5, 6

and 7 filed nomination for the post of Mukhiya in the Gram Panchayat, Ekchari, District- Bhagalpur. The election was held on 10.05.2016, the votes

were counted on 29.05.2016 and the petitioner was declared elected having secured 2022 votes. Respondent no. 5, who was another contestant had

secured 1979 votes. Besides the votes secured by the contestants, 438 votes were declared to be invalid votes. 16 days after the results were

declared, i.e. on 31.06.2016, the respondent no. 5 filed an election petition in the court of Munsif, Kahalgaon vide Election Petition No. 2 of 2016 for

setting aside the election of the petitioner as Mukhiya and for passing an order for recount of votes and declaring her to be elected on the basis of

finding that she had attained the majority of valid votes.

Respondent no. 5 has alleged in her election petition that counting of ballot papers were done on 16 tables in a room and it was not possible for her

or her counting agents to cover and watch all the tables. The objections raised by the counting agents were not heard by the counting staffs and the

superior authority and they illegally rejected 438 votes in collusion with the petitioner. She has further alleged that several ballot papers which

contained mark of voting on her symbol or other contesting candidates were illegally counted in favour of the petitioner. She also alleged that a number

of invalid votes were also counted in favour of the petitioner. On these allegations, she had sought for relief of setting aside the election of the

petitioner and ordering recount of votes and declaration that she had been duly elected.

In paragraph-14 of the election petition, respondent no. 5 has pleaded that after the final result was declared, she made a claim for recount of the

ballot papers by presenting a petition, but the same was not received by the concerned authority. The said Paragraph-14 reads as under :-

“14. That it is further submitted that the final result was declared by the authority and the petitioner told about her claim for recounting the ballot

papers by presenting a petition on the date of counting and the same was not received by the concerned authority and the petitioner along with helper

were thrown out forcibly and the authority directed them to come back next day for her claim but on next day the petitioner came and her claim was

not taken into consideration and it is submitted on 31.05.2015 the petitioner had filed a petition before the State Election Commission and the District

Magistrate Bhagalpur at 3.06 P.M. through registered post and no action has been taken either by the State Election Commission Bihar or by the

District Election Officer, Bhagalpur till today.â€​

The petitioner, who was made opposite party no. 5 in the election petition, contested the election petition and filed a written statement denying all

the allegations made by the election petitioner. She has asserted in her written statement that the entire counting process was completed in

accordance with law whereafter she was declared elected.

After going through the election petition and the written statement, learned Munsif framed following issues for adjudication :

“(i) Whether the case is maintainable?

(ii) Whether cause of action was available to the applicant to file election petition?

(iii) Whether any illegality was committed in counting of votes in the election held for the post of Mukhiya in the Gram Panchayat Ekchari?

(iv) Whether at the time of counting, certain votes were illegally declared invalid votes?

(v) Whether an order can be given for recount of votes?

(vi) Whether the petitioner/opposite party Indira Devi was rightly elected for the post of Mukhiya?

(vii) Whether the applicant Beauty Patel has made out a case for declaration that she had been duly elected for the post of Mukhiya ?

(viii) Whether the applicant is entitled for grant of any other relief?â€​

After framing of the aforestated issues, five witnesses were examined on behalf of the election petitioner in the proceeding. Similarly, four

witnesses were examined on behalf of the petitioner, who was the main contesting party. Certain witnesses were also examined on behalf of other

respondents.

After examining witnesses on behalf of the parties, by the impugned judgment dated 19.07.2017, the learned Munsif passed the following order:-

“(i) First of all counting will be done of 438 rejected votes. On the basis of the counting of these votes, if the election petitioner is found to have

secured/obtained highest votes, she will be declared elected Mukhiya.

(ii) If on the basis of counting of rejected 438 votes, no change in the election result is found then the ballot papers of booth nos.70, 71, 72, 74, 75, 81

and 82 shall be counted and on the basis of the votes secured by each candidate, result shall be declared in favour of the candidate who has secured

highest votes.â€​

Mr. Harendra Prasad Singh, learned advocate appearing for the petitioner assailing the impugned judgment dated 19.07.2017 submitted that the

impugned judgment amounts to fishing inquiry, as alternative orders have been passed without arriving at any conclusion, in respect of issues framed in

the election petition. He contended that there was no justification for an order of recount of votes, as no case for breach of secrecy of ballot was

made out. He contended that the election petitioner did not file a statutory application under Rule 79 of the Bihar Panchayat Raj Rules, 2006 (for short

„the Rules‟). According to him, the order for recount of ballot papers has been passed merely on surmises and conjectures and, thus, the same is

not sustainable in the eyes of law.

Per contra, Mr. Sanjay Singh, learned advocate appearing for respondent no. 5 (election petitioner) submitted that there is no error in the impugned

judgment passed by the learned Munsif. According to him, in terms of Rule 79 of the Rules, a complaint was made immediately after the election was

held but the same was not taken by the authority. He further contended that making of an application under aforestated Rule 79 is not mandatory for

recount of votes. According to him, since the election petitioner had made out a case substantiating the allegation that 438 ballot papers were illegally

rejected by the Returning Officer, no error can be found in the directions given by the learned Munsif for recount of those ballot papers. Similarly, as

election petitioner (respondent no. 5) had specifically provided booth numbers or ward numbers in which those valid votes were cast and were

rejected as illegal votes, the direction given by the learned Munsif cannot be held to be erroneous.

Having heard the parties and perused the materials available on record, firstly, it would be proper to set out the proposition of law as regards the

need for secrecy of ballot being maintained and as and when the well established rule can be departed from.

In Ram Sewak Yadav vs. Hussain Kamil Kidwai & Ors. [AIR 1964 SC 1249], the Supreme Court has laid down the circumstances when an

order for inspection of ballot papers can be passed as under :-

“(7) An order for inspection may not be granted as a matter of course: having regard to the insistence upon the secrecy of the ballot papers, the

Court would be justified in granting an order for inspection provided two conditions are fulfilled :

(i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his

case; and

(ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers

is necessary.

But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out

evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case

so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or

believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection.â€​

In Dr. Jagjit Singh vs. Giani Kartar Singh and Ors. [AIR 1966 SC 773], the appellant challenged the election of the first respondent to the Punjab

Legislative Assembly. In the recount of votes ordered by the Tribunal, it was found that he had secured 22,491 votes and the respondent had secured

22,412 votes. The Tribunal allowed the election petition and declared the appellant to have been duly elected. The High Court set aside the order of

the Tribunal and the judgment of the High Court was confirmed by the Supreme Court. While doing so, the Supreme Court observed as under :-

“31. …Therefore, in a proper case, the Tribunal can order the inspection of the ballot boxes and may proceed to examine the objections raised by

the parties in relation to the improper acceptance or rejection of the voting papers. But in exercising this power, the Tribunal has to bear in mind

certain important considerations. Section 83(1)(a) of the Act (Representation of the People Act, 1951) requires that an election petition shall contain a

concise statement of the material facts on which the petitioner relies; and in every case, where a prayer is made by a petitioner for the inspection of

the ballot boxes, the Tribunal must enquire whether the application made by the petitioner in that behalf contains a concise statement of the material

facts on which he relies. Vague or general allegations that valid votes were improperly rejected, or invalid votes were improperly accepted, would not

serve the purpose which Section 83(1)(a) has in mind. An application made for the inspection of ballot boxes must give material facts which would

enable the Tribunal to consider whether in the interests of justice, the ballot boxes should he inspected or not. In dealing with this question, the

importance of the secrecy of the ballot papers cannot be ignored, and it is always to be borne in mind that the statutory rules framed under the Act are

intended to provide adequate safeguard for the examination of the validity or invalidity of votes and for their proper counting. It may be that in some

cases, the ends of justice would make it necessary for the Tribunal to allow a party to inspect the ballot boxes and consider his objections about the

improper acceptance or improper rejection of votes tendered by voters at any given election; but in considering the requirements of justice, care must

be taken to see that election petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the

returned candidate's election is void…â€​

In Beliram Bhalaik vs. Jai Beharilal Khachi & Anr. [(1975) 4 SCC 417], the Supreme Court cautioned that since an order for a recount touches

upon the secrecy of the ballot papers, it should not be made lightly or as a matter of course. Although no cast-iron rule of universal application can be

or has been laid down, yet from a beadroll of the decisions of the Supreme Court, two broad guidelines are discernible : that the court would be

justified in ordering a recount or permitting inspection of the ballot papers only where (i) all the material facts on which the allegations of irregularity or

illegality in counting are founded, are pleaded adequately in the election petition, and (ii) the Court/Tribunal trying the petition is prima facie satisfied

that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties.

In Suresh Prasad Yadav vs. Jai Prakash Mishra & Ors. [(1975) 4 SCC 822], the Supreme Court held as under :-

“6. The Court would be justified in ordering recount of the ballot papers only where:

(1) The election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are

founded;

(2) On the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake

in counting; and

(3) The court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do

complete and effectual justice between the parties.â€​

In Bhabhi vs. Sheo Govind & Ors. [(1976) 1 SCC 687], the Supreme Court reiterated the same principles as under :-

“(1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and

indefinite allegations;

(2) That before inspection is allowed, the allocations made against the elected candidate must be clear and specific and must be supported by

adequate statements of material facts;

(3) The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount;

(4) That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the

parties;

(5) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a

view to fish materials for declaring the election to be void; and

(6) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court

regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials.â€​

In S. Raghbir Singh Gill vs. S. Gurcharan Singh Tohra & Ors. [1980 Supp SCC 53], the Supreme Court held as under :-

“31…True, recount cannot be ordered just for the asking. A petition for recount after inspection of the ballot papers must contain an adequate

statement on material facts on which the petitioner relies in support of his case and secondly the Tribunal must be prima facie satisfied that in order to

decide the dispute and to do complete justice between the parties an inspection of the ballot papers is necessary. The discretion conferred in this

behalf should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fishing out materials for

declaring the election void…â€​

In P.K.K. Shamsudeen vs. K.A.M. Mappillai Mohindeen & Ors [(1989) 1 SCC 526], the petitioner had contested the election for the post of

President of the Keelpaguthi Panchayat in Tamil Naidu. In the election, the first respondent was declared elected and the petitioner challenged the

election on the ground that while counting, the Returning Officer had wrongly treated some valid votes cast in favour of the petitioner as invalid votes

and certain invalid votes were treated valid, which were cast in favour of first respondent and that the Returning Officer had not permitted the

petitioner‟s agent to have scrutiny of the ballot papers at the time of counting. The Tribunal, after recording evidences of all the candidates and the

Assistant Returning Officer ordered for recount of votes. On recount of votes, it was found that there was no difference in the number of votes

secured by the petitioner, but in so far as the first respondent was concerned, he had secured only 528 votes as against 649, which were originally held

to have secured. 121 votes cast in his favour had been found to be invalid votes. Based on the figures of the recount, the election petitioner was

declared duly elected as he had secured 28 votes more than the first respondent on recount. The order was challenged by first respondent in civil

revision petition before the High Court. The High Court allowed the revision petition and held that the Tribunal had erred in ordering a recount of the

votes when the petitioner had not made out a prima facie case for an order of recount of votes. The order passed by the High Court was challenged

before the Supreme Court. The Supreme Court held in para-13 as under :-

“13. Thus the settled position of law is that the justification for an order for examination of ballot papers and recount of votes is not to be derived

from hindsight and by the result of the recount of votes. On the contrary, the justification for an order of recount of votes should be provided by the

material placed by an election petitioner on the threshold before an order for recount of votes is actually made. The reason for this salutary rule is that

the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need

for it. The right of a defeated candidate to assail the validity of an election result and seek recounting of votes has to be subject to the basic principle

that the secrecy of the ballot is sacrosanct in a democracy and hence unless the affected candidate is able to allege and substantiate in acceptable

measure by means of evidence that a prima facie case of a high degree of probability existed for the recount of votes being ordered by the Election

Tribunal in the interests of justice, a Tribunal or court should not order the recount of votes.â€​

In M. R. Gopalakrishnan vs. Thachady Prabhakaran & Ors. [1995 Supp (2) SCC 101], the Supreme Court held that the demand of a defeated

candidate for recount of votes has to be considered keeping in view that secrecy of the ballot is sacrosanct in a democracy and, therefore, unless the

election petitioner is able not only to plead and disclose the material facts but also substantiate the same by means of evidence of reliable character

that there existed a prima facie case for the recount, no Tribunal or Court would be justified in directing the recount.

In Vadivelu vs. Sundaram & Ors [(2000) 8 SCC 355], The Supreme Court once again emphasized the same principle as under :-

“16. The result of the analysis of the above cases would show that this Court has consistently taken the view that re-count of votes could be

ordered very rarely and on specific allegation in the pleadings in the election petition that illegality or irregularity was committed while counting. The

petitioner who seeks re-count should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only

the Court is satisfied about the truthfulness of the above allegation, it can order re-count of votes. Secrecy of ballot has always been considered

sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting. But if it is

proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously

prejudiced, the Court can resort to re-count of votes under such circumstances to do justice between the parties.â€​

In V. S. Achuthanandan vs. P. J. Francis & Anr. [(2001) 3 SCC 81], the Supreme Court held that once a recount is validly ordered the statistics

revealed by the recount shall be available to be used for deciding the election dispute. The facts revealed by recount cannot be relied upon by the

election petitioner to support the prayer and sustain the order for recount if the pleadings and materials available on record anterior to actual recount

did not justify grant of the prayer for inspection and recount.

In M. Chinnasamy vs. K. C. Palanisamy & Ors. [2003 (10) SCALE 103], the Supreme Court after noticing a large number of decisions held that

it is obligatory on the part of the election tribunal to arrive at a positive finding as to how a prima facie case has been made out for issuing a direction

for recounting.

The Court held as under :-

“43. …Apart from the clear legal position as laid down in several decisions, as noticed hereinbefore, there cannot be any doubt or dispute that only

because a recounting has been directed, it would be held to be sacrosanct to the effect that although in a given case the court may find such evidence

to be at variance with the pleadings, the same must be taken into consideration. It is now well-settled principle of law that evidence adduced beyond

the pleadings would not be admissible nor any evidence can be permitted to be adduced which is at variance with the pleadings. The court at a later

stage of the trial as also the appellate court having regard to the rule of pleadings would be entitled to reject the evidence wherefor there does not

exist any pleading.â€​

In view of the ratio laid down by the Supreme Court in the aforestated cases, it would be manifest that the preservation of the secrecy of the ballot

is a sacrosanct principle. In order to disturb the secrecy of the ballot there must be sufficient material before the court regarding the truth of the

allegations made in the election petition and on the basis of evidences adduced the court must be satisfied that making an order of recount is a must to

decide the dispute and to do complete justice between the parties. In absence of the aforestated prerequisites, the secrecy of the ballot cannot be

disturbed. It would also be manifest that the burden of proof is always upon the election petitioner to establish that the illegality committed in counting

of votes has materially affected the result of the election whereby the defeated candidate has been seriously prejudiced.

In the present case, when I look to these well-established principles, I find that the petitioner has neither made such averments in the election

petition nor adduced evidence of such a comprehensive nature, which could have made the learned Munsif to reach a prima facie satisfaction that

there was adequate justification for disturbing the secrecy of ballot papers. There is a vague pleading by the defeated candidate (election petitioner) in

the election petition that illegality was committed while counting the ballot papers. Though there is allegation that there was improper acceptance of

invalid votes and improper rejection of valid votes, there is nothing on record to show that even those vague allegations were substantiated by leading

cogent evidence in the proceeding. The allegation made against the elected candidate has not been supported by adequate statements of material

facts. The learned Munsif has also not recorded his finding or prima facie satisfaction that making of an order for recount was imperatively necessary

to decide the dispute and to do complete and effectual justice between the parties. The order impugned passed by the learned Munsif amounts to a

roving inquiry in order to find out the truth of the allegations made available for a recount. Such a roving inquiry is not permissible in law. The court

cannot come forward in aid of the defeated candidate to indulge in a roving inquiry with a view to garner materials for declaring the election to be

void.

I further find that respondent no. 5 (election petitioner) has contended that an application for recounting of votes was made before the Returning

Officer. Rule 79 of the Rules provides that the candidate or in his absence his agent or his counting agent can file an application to the election officer

or the officer(s) authorised by him praying for recounting and the basis therefor. On receipt of such an application, the election officer can accept

either in whole or in part the same or reject the same wherefor reasons are required to be assigned. In the event of election officer accepting either in

whole or in part such a prayer of the candidate, he would recount the votes whereafter the result or the number of votes polled may be amended.

However, no application would be accepted for further recounting.

At this stage, it would be pertinent to note that Rule 79 is contained in Chapter X of the Rules which is titled as „Counting of Votes‟. 72 to 78

relating to selection of place for counting of votes, supervision of counting of votes, entry into the place fixed for counting, scrutiny of the ballot papers

and their rejection, counting of votes and then Rule 79 provides for recounting of votes.

From a perusal of para-14 of the election petition set out hereinabove, it would be clear that the election petitioner had made a vague statement

regarding presenting a petition for recount of ballot papers on the date of counting. It is not clear as to whom she had presented her written

application. She has failed to bring on record the petition or copy thereof, which she had presented before the authority. The petition being a

documentary evidence should have been at least produced before the court of Munsif, if the same was in existence, so as to make the plea of

presenting the petition believable.

The Retuning Officer Ranjan Lal Nigam was examined as a witness. In his deposition, he has clearly stated that the counting of ballot was made

in accordance with law and certain votes were rejected during scrutiny of ballot papers on valid grounds. There is nothing in his cross-examination

from which it can be inferred that any complaint/representation was made to him by the election petitioner for recount of votes. Under such

circumstance, it is highly unbelievable that any representation for recount stating the grounds therein in terms of Rule 79 of the Rules was ever made

by the election petitioner.

I further find from perusal of the impugned judgment that after discussing the evidences led on behalf of the parties, the learned Munsif has

abruptly issued directions for recounting of votes in the manner stated above even without expressing his satisfaction that in order to decide the dispute

and do complete justice between the parties, recount of the ballot was necessary and without giving any finding on any of the issues framed for

adjudication.

In view of the discussions made above, I am of the opinion that the election petitioner had failed to make out any case for recount of votes. The

learned Munsif completely erred in passing the judgment without giving any finding that the illegality or irregularity, if any, committed in counting had

materially affected the result of the election.

For the reasons aforementioned, the impugned judgment dated 19.07.2017 passed by the learned Munsif, Kahalgaon, Bhagalpur in Election Petition

No. 2 of 2016 cannot be sustained. It is set aside, accordingly.

The writ petition stands allowed.

However, there shall be no order as to costs.